At trial, a medical expert is called in to support a claim for injuries suffered as a result of improper medical care and treatment. In fact, we are required to bring in a medical expert to support our case at trial here in New York.

The defense will also put on medical experts to contradict our claim and to support the defense's position.

Why then do we use hypothetical questions and how can we use it to get specific answers from the opposing expert?

Our expert will come into court and claim that the doctor departed from good and accepted medical practice. As a result of those departure he will likely claim that you suffered significant injury. The defense expert on the other hand, will argue that their doctor did nothing wrong. He will argue that anything he did, did not cause or contribute to your injuries.

I will have an opportunity to question the defense experts and cross examine them during trial.

There may be certain facts that the defense expert does not agree with, or base an opinion upon facts favorable to the defense.

During cross-examination, I have the opportunity to ask him to assume that if our set of facts are true, would his opinion be different?

This is known as a hypothetical question.

I am permitted to ask hypothetical questions and ultimately the jury will be the one to decide which set of facts they believe. If they believe that we are more likely right than wrong that our set of facts are true and correct, and the defense expert has changed his opinion based upon a hypothetical question I have asked, it is very powerful to have the defense experts agree with our own expert. 

“Doctor, I want you to assume the following facts to be true...

...Assuming those facts be true, would you agree that in those circumstances it would be a departure from good and accepted care not to do X,Y and Z?”

The answer will likely be “Yes.”

I will then continue asking additional hypothetical questions that support our position.

Likewise, the defense attorney will be able to use hypothetical questions and fashion those questions in a way that is favorable to the defense. 

Then, during closing arguments, I have the ability to ask the jury which set of facts they believe. If they believe our set of facts as more likely true than not true, then they can use the defense experts to support our position and further enhance our claim. 

Gerry Oginski
Connect with me
NY Medical Malpractice & Personal Injury Trial Lawyer